The NSW Police Force has lost an unfair dismissal case in the state’s Industrial Relations Commission (IRC), after it was found that an allegation of cocaine use is not sufficient to terminate an officer’s employment.

Background

Stefan Elias was dismissed from the force after an internal police investigation concluded that he had likely consumed cocaine after a night-out with fellow officers at the Ivy nightclub in Sydney CBD.

A complaint was made by another officer about the incident, which led to Mr Elias being urine tested 15 days after the night in question.

The test returned a negative result, but hair samples detected 120 picograms of cocaine per milligram of hair.

Expert evidence

Consultant forensic pharmacologist, John Farrar, gave evidence before the IRC that, despite the hair analysis, there were no cocaine metabolites in Elias’s system.

The Commission was further told that the low reading could have been a result of exposure to the drug, rather than ingestion.

An inference open to the Commission was that Mr Elias had been exposed in the course of his friendship with another officer, Mr Najdovski, whose testing suggested he was a repeat user of cocaine.

The Commission heard the pair had attended ‘Bucks party’ where several people were using cocaine.

Consultant toxicologist Dr Lewis opined that the absence of the cocaine metabolite in Mr Elias’s system did not necessarily mean the officer did not ingest the drug. Although the doctor could not exclude external contamination as the source of cocaine in the hair sample, he was of the view that the tests suggested “on the balance of probabilities” that Mr Elias had consumed the drug.

Improper testing

The IRC further heard that the testing of the samples was carried out improperly, as there was no ‘segmental analysis’, which is where samples are taken along the length of a strain of hair.

This is important because congested cocaine detected in the hair should give progressively declining results as the hair grows, while exposure in the environment might not.

There was not enough hair remaining for a fresh segmental test, or to enable testing by an expert engaged by Mr Elias.

Police report

A report by Police Detective Bortolussi was before the Commission which, among other things, stated:

“The subject officer’s positive drug test combined with his presence at 2 locations where cocaine is known to be used, and the drug use of his friend, are cause for great concern and suspicion about his off duty activities.”

However, the report conceded there was no direct evidence that Mr Elias used or possessed cocaine.

“I am not satisfied to the requisite standard that a sustained finding for ‘Illicit Drug Use’ can be reached”, the Detective stated.

The NSW Police Force nevertheless concluded there was enough evidence to reach a finding that the officer had used cocaine, and that his employment should therefore be terminated.

Legal test

Unfair dismissal laws normally require employers to prove, on the balance of probabilities, that the employee engaged in conduct warranting dismissal.

However, section 181F(2) of the Police Act 1990 (NSW) reverses this onus, requiring officers to prove that their removal was harsh, unreasonable or unjust.

It was agreed between the parties that illegal drug use could justify immediate dismissal from NSW Police Force.

The issue at hand was whether Mr Elias knowingly and deliberately ingested cocaine.

Findings

The Commission ultimately found there was strong circumstantial evidence of environmental exposure, and a lack of direct evidence regarding consumption.

Chief Commissioner Kite observed that the hair test was not enough to reach a conclusions that consumption had occurred.

The Commissioner further noted the failure to undertake segmental analysis, and that hair testing is a relatively new science with no uniformly accepted rules for determining consumption.

Accordingly, the IRC ruled that Mr Elias had discharged his onus, that the dismissal was unfair and that he should be reinstated.